Complainant

Respondent

Anonymised Parties

An Employee

A Construction Services Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00023934-001

09/12/2018

The Complainant commenced employment with the Respondent, a construction services company, in August 2016, in the role of a machine operator. The Complainant worked with the Respondent until 9 November 2018, on which date his employment was terminated.

The Complainant submitted his claim to the WRC, under the Redundancy Payment Act, 1967, on 9 December 2018.

The Complainant submitted that he commenced work with the Respondent in August 2016, having transferred there from another company operated by one of the Respondent Company’s directors (Mr A), for whom he worked since April 2010.

The Complainant has submitted that, while he was on parental leave, in November 2018, he received a phone call from Mr A, who informed him that the Respondent Company was not going to continue operating. The Complainant further submitted that Mr A told him that if he had something else workwise, he should take it.

The Complainant also submitted that Mr A provided him with contact details of an individual, in another company, who according to Mr A, would be in a position to arrange work for him from the following Monday.

The Complainant submitted that he commenced employment with the company, whose details had been provided to him by Mr B, on the following Monday.

The Complainant is seeking redundancy payment in relation to the termination of his employment on 9 November 2018 by the Respondent.

The WRC received correspondence from solicitors on behalf of one of the directors of the Respondent company, (Mr B) in response to the complaint submitted by the Complainant.

This correspondence sets out that Mr B and his fellow director Mr A are shareholders in the Respondent company, which the evidence indicates was first registered in August 2016. The correspondence further set out that relations between Mr A and Mr B had broken down to the extent that the Respondent company was no longer functioning or trading.

On the day of the hearing, Mr B attended in a personal capacity, but indicated that he was not there as a representative of the Respondent. Mr B confirmed the evidence submitted by the Complainant with regard to the cessation of the Respondent Company’s business.

Mr B further stated, in evidence, that while he had a meeting, in the week prior to the business closing down, with Mr A, during which he (Mr B) indicated he was willing to step down from the business, the notice to the Complainant and his colleague that the business was ceasing, had not been discussed with him. Mr B stated that he only became aware of this situation when contacted by the Complainant and his colleague.

The Complainant is claiming redundancy in line with the Redundancy Payments Act, 1967 – 2014.

Section 7 of the Act deals with the general right to redundancy payment.

In particular, Section 7 (2) states that:

“For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained”.

Based on the evidence adduced, it appears that the circumstances set out at paragraph (a) above is the most applicable to this particular situation.

I am satisfied, from the evidence presented that the Complainant was in employment with the Respondent Company from 1 August 2016 and that his employment terminated on 9 November 2018 by reason of redundancy. As a result, I find that the Complainant qualifies for a redundancy payment covering that period.

No evidence was presented in relation to the Complainant’s Transfer from his previous employment to that of the Respondent Company. Consequently, I am not in a position to determine whether or not service with the prior employer can be taken into consideration. However, in the event that the transfer took place under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, then the Complainant’s service with the previous employer would qualify for inclusion in the redundancy payment calculation.

Based on the findings/conclusions as set out above, I find that the Complainant’s claim under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that he is entitled to a redundancy payment based on the following criteria:

Date of Commencement:     1 August 2016

Date of Termination:             9 November 2018

Gross Weekly Pay:                   €700.00

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy Payments Act